ON January 3, 2013, USCIS officially published the final rule on “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives”. Qualified applicants can begin filing provisional wiver applications (Form I-601A) on March 4, 2013.
Immigrants who enter the country illegally or overstay their visas cannot apply for permanent residence in the United States. Instead the immigration process must be finished at a US embassy abroad. However, leaving the country to retrieve a visa will automatically subject the out-of-status immigrant to an unlawful presence penalty, which could cause family separation for up to 10 years. For those that qualify, the unlawful presence penalty could be waived through the I-601 waiver process. However, the applicant may be isolated outside the US for months or years waiting for a decision on the waiver. The new stateside waiver rule allows qualified immigrants to process the waiver in the US so they will know in advance whether their case will be approved.
Secretary of Homeland Security Janet Napolitano explained the purpose of the stateside waiver:
“Under current law, immediate relatives of US citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the US and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.”
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“Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file [a stateside waiver] must notify the Department of State’s National Visa Center that they are or will be seeking a provisional [stateside] waiver from USCIS. The new process will reduce the amount of time US citizens are separated from their qualifying immediate relatives.”
To qualify for the stateside provisional waiver, applicants must meet the following criteria:
17 years of age or older.
Present in the US when filing the waiver.
Immediate relative (spouse, children under 21, and parents) of a US citizen. The US citizen must be a spouse or parent only. USCIS has said that it will consider expanding the availability of the provisional waiver process to other categories after assessing the effectiveness.
Approved I-130 or I-360 petition. A provisional waiver can only be filed after an immigrant petition has been approved, so don’t wait to file the immigrant petition.
The immigrant visa case must be pending with the National Visa Center, processing fees paid, and notification of intent to process a stateside provisional waiver.
Unlawful presence must be the only inadmissibility issue. The waiver only applies if the applicant’s ground of inadmissibility is unlawful presence in the US including C-1/D-1 crewmen, EWI, etc. Applicants who have criminal issues, deportations, false claims to US citizenship, misrepresentation, fraud or any other immigration violations will not qualify for a provisional waiver.
Demonstrate that the denial of the waiver would result in extreme hardship to the US citizen spouse or parent. Hardship factors can include economic hardship, medical issues, country conditions abroad, family separation, and any other difficulty or harm faced by the qualifying relative, if the waiver is not granted.
Applicants with pending removal proceedings generally do not qualify under for a provisional waiver. There’s an exception for applicants with administratively closed cases which have been taken off the immigration court calendar. Once the waiver is granted, the immigration court must terminate the deportation cases before the applicant departs the US for the immigrant visa interview at the consulate.
Note that “provisional” means that the government has reviewed the case and believes that the waiver should be granted. However, there is no guarantee that a case will be successful if the facts change or new information is discovered. For example, if the consulate learns that an applicant had previous immigration violations or a criminal history, then an approved provisional waiver could be revoked.
Extreme hardship waivers are complicated and difficult to prepare, and should only be handled by an immigration lawyer experienced in preparing waiver applications.
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US Immigration Attorney, Robert K. D’Andrea (J.D., M.B.A.) practices exclusively in the area of immigration and naturalization law and is a principal of D’Andrea Law Corporation, PLC. Offices are located in Glendora (216 N. Glendora Ave, Suite 200, Glendora, CA 91741) and Pasadena (1055 E. Colorado Blvd, Suite 500, Pasadena, CA 91106). Contact the firm for a free consultation. Tel: (626) 240-4688, (626) 771-2953. Chinese: (626) 852-9838. Email: [email protected]. Website: www.dandrealaw.com.
